In Harris v. Forklift Sys., Inc., No. 92-1168 slip
op. (Nov. 9, 1993), the Supreme Court considered whether a
plaintiff was required to prove psychological injury in order to
prevail on a cause of action alleging hostile environment sexual
harassment under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e et
seq. A unanimous Court held that if a workplace is permeated
with behavior that is severe or pervasive enough to create a
discriminatorily hostile or abusive working environment, Title VII
is violated regardless of whether the plaintiff suffered
psychological harm. The Court's decision reaffirms Meritor
Savings Bank v. Vinson, 477 U.S. 57, 40 EPD ¶ 36,159
(1986), and is consistent with existing Commission policy on
hostile environment harassment. Consequently, the Commission will
continue to conduct investigations in hostile environment
harassment cases in the same manner as it has previously.

Background

In Harris, the plaintiff, Teresa Harris, brought a
Title VII action against her former employer, Forklift Systems,
Inc. ("Forklift"), an equipment rental company, alleging that
Forklift

had created a sexually hostile work environment. Harris had
worked for Forklift as a manager from April 1985 to October
1987.

The case was heard by a Magistrate who found that during the
period of Harris' employment, Forklift's President, Charles Hardy,
subjected Harris to numerous offensive remarks and unwanted
sexual

innuendos. Specifically, the court found that Hardy had, on a
number of occasions, asked plaintiff and other female employees to
retrieve coins from his front pants pocket, asked plaintiff and
other female employees to retrieve objects that he had thrown on
the ground in front of them and commented, using sexual innuendo,
about plaintiff's and other female employees' attire. On other
occasions, he remarked to plaintiff in the presence of other
employees, "You're a woman, what do you know," "You're a dumb ass
woman," and "We need a man as the rental manager." In addition, he
once remarked in the presence of other employees, as well as a
client, that he and Harris should "go to the Holiday Inn to
negotiate [Harris'] raise." Harris, slip op. at 1.

In August 1987, Harris complained to Hardy that she found his
behavior offensive. Although Hardy apologized and promised to
desist, in September 1987 he suggested in the presence of other
employees that plaintiff had promised sexual favors to a customer
in order to secure an account. Shortly thereafter, Harris tendered
her resignation and filed a Title VII action against Forklift
alleging hostile environment sexual harassment.

The district court dismissed the case, concluding that Harris
had failed to support her claim of sexual harassment. The court
found, however, that "Hardy is a vulgar man [who] demeans the
female employees at his work place." Harris v. Forklift Sys.,
Inc., 60 EPD ¶ 42,070 (M.D. Tenn. 1991). Moreover, the
court stated that "[a] reasonable woman manager under like
circumstances would have been offended by Hardy." Id.
Nevertheless, the court concluded that this was not enough to
support a claim of sexual harassment. Applying the standard set
forth in Rabidue v. Osceola Refining Co., 805 F.2d
611, 620, 41 EPD ¶ 36,643 (6th Cir. 1986), cert.
denied, 481 U.S. 1041 (1987), the court asserted that "the
test for whether or not sexual harassment rises to the level of a
hostile work environment is whether the harassment is 'conduct
which would interfere with that hypothetical reasonable
individual's work performance and affect seriously the
psychological well-being of that reasonable person under like
circumstances.'" Harris, 60 EPD ¶ 42,070 (quoting
Rabidue, 805 F.2d at 620). The district court
concluded that Hardy's comments were not "so severe as to be
expected to seriously affect [Harris'] psychological well-being,"
id., and dismissed the complaint. In the court's view,
"[a] reasonable woman manager under like circumstances would have
been offended by Hardy, but his conduct would not have risen to the
level of interfering with that person's work performance."
Id. In a brief percuriam opinion,
the Sixth Circuit affirmed the judgment for Forklift upon the
Magistrate's reasoning. SeeHarris v. Forklift Sys.,
Inc., 60 EPD ¶ 42,071 (6th Cir. 1992)(per curiam).

The Supreme Court granted certiorari, 507 U.S.
(1993), to resolve a conflict among the circuits regarding whether
a plaintiff must show psychological injury in order to prevail on a
hostile environment sexual harassment claim.

The Opinion

At the outset, Justice O'Connor, writing for a unanimous Court,
reaffirmed the standard set forth in Meritor Savings Bank v.
Vinson, 477 U.S. 57, 40 EPD ¶ 36,159 (1986), that
sexual harassment is actionable if it is sufficiently severe or
pervasive to alter the conditions of the plaintiff's employment.
The Court noted that an "objectively hostile or abusive work
environment" is created when "a reasonable person would find [it]
hostile or abusive," and the victim subjectively perceives it as
such. Harris, slip op. at 4.

Rejecting the Sixth Circuit's psychological injury requirement,
the Court noted that even though discriminatory incidents may not
seriously affect an employee's psychological well-being,1 a discriminatorily abusive work
environment may, among other things, affect an employee's job
performance or advancement. The Court concluded that even if
harassing conduct produces no "tangible effects," a plaintiff may
assert a Title VII cause of action if the "discriminatory conduct
was so severe or pervasive that it created a work environment
abusive to employees because of their race, gender, religion, or
national origin." Id. According to the Court, "[w]hen
the workplace is permeated with 'discriminatory intimidation,
ridicule, and insult,' that is 'sufficiently severe or pervasive to
alter the conditions of the victim's employment and create an
abusive working environment,' Title VII is violated."
Id. (quoting Meritor, 477 U.S. at 65,
67)(citations omitted).

In an attempt to clarify Meritor, the Court noted
that Meritor's reference to environments that
completely destroy the emotional and psychological stability of
members of minority groups was intended to illustrate egregious
cases and was not intended to "mark the boundary of what is
actionable." Id. at 5. The Court stated: "So long as
the environment would reasonably be perceived, and is perceived, as
hostile or abusive, there is no need for it also to be
psychologically injurious." Id. (citation
omitted).

Noting that the test for hostile environment is not
"mathematically precise," the Court concluded that in assessing a
hostile environment claim, the totality of the circumstances must
be examined, including "the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance."
Id. While psychological injury may be relevant, it is
not required. Seeid. at 5-6.

Accordingly, the Court remanded the case for consideration of
whether a hostile environment had been created. The Court concluded
that the district court's concern with whether Harris suffered
psychological injury "may well have influenced its ultimate
conclusion, especially given that the court found this to be a
'close case.'" Id. at 6.

Justice Scalia and Justice Ginsburg issued separate concurring
opinions. In his concurrence, Justice Scalia suggested that
although the Court refined the Meritor standard,
little certitude has been added. His concurrence noted that even
though the Court adopted an objective standard for determining
whether a hostile environment has been created and listed factors
to be evaluated, it did not suggest how much of each factor is
required, nor did it isolate a single factor as determinative.
However, Justice Scalia asserted that he knew of "no alternative to
the course the Court today has taken . . . I know of no test more
faithful to the inherently vague statutory language than the one
the Court today adopts." Harris (Scalia, J.,
concurring), slip op. at 2.

In her concurring opinion, Justice Ginsburg framed the critical
issue in hostile environment cases as "whether members of one sex
are exposed to disadvantageous terms or conditions of employment to
which members of the other sex are not exposed."
Harris (Ginsburg, J., concurring), slip op. at 1. Citing the
Commission's Brief, Justice Ginsburg suggested that the major
inquiry in hostile environment cases should be "whether the
discriminatory conduct has unreasonably interfered with the
plaintiff's work performance." Id. According to
Justice Ginsburg, all the plaintiff need establish is that the
harassing conduct "[made] it more difficult to do the job."
Id. at 1-2.

Analysis

The Court's decision in Harris reaffirmed
Meritor and clarified, rather than altered, the elements
necessary for proving hostile environment sexual harassment. The
decision is fully consistent with the Commission's "Guidelines on
Discrimination Because of Sex," 29 C.F.R. § 1604.11 and its
Policy Guidance, "Current Issues of Sexual Harassment," EEOC Policy
Guidance No. N- 915-050, CCH ¶ 3114 (March 19, 1990).
Accordingly, Harris requires no change in Commission
policy or in the way the Commission investigates charges.

The Court in Harris adopted the "totality of the
circumstances" approach which the Commission had previously set
forth in its "Guidelines on Discrimination Because of Sex" and in
its Policy Guidance "Current Issues of Sexual Harassment." Thus, in
evaluating welcomeness and whether conduct was sufficiently severe
or pervasive to constitute a violation, investigators should
continue to "look at the record as a whole and at the totality of
the circumstances, such as the nature of the sexual advances and
the context in which the alleged incidents occurred." 29 C.F.R.
§ 1604.11(b).

The Court also noted that the factors that indicate a hostile or
abusive environment may include the frequency of the discriminatory
conduct, its severity, whether it is physically threatening or
humiliating, and whether it unreasonably interferes with an
employee's work performance.2
The factors cited by the Court parallel those enumerated in the
Commission's Policy Guidance "Current Issues of Sexual Harassment."
See "Current Issues of Sexual Harassment," at 14. Moreover,
both the Court and the Commission have stressed that an employee is
not required to show any single factor in order to succeed on a
hostile environment cause of action. See
Harris, slip op. at 5-6; "Current Issues of Sexual
Harassment," at 17. Based on the foregoing, investigators should
continue to evaluate charges by considering the factors listed in
Harris as well as any additional factors that may be
relevant in the particular case.

The Court's rejection of the psychological injury requirement is
also consistent with the Commission's policy. The Commission
explicitly rejects the notion that in order to prove a violation,
the plaintiff must prove not only that a reasonable person would
find the conduct sufficiently offensive to create a hostile work
environment, but also that his/her psychological well-being was
affected. While investigators may consider psychological injury as
a factor in assessing whether a hostile environment has been
created, they should keep in mind that neither this nor any other
single factor is required to state a cause of action for hostile
environment harassment.3Seegenerally "Current
Issues of Sexual Harassment," at 15, n.20.

The Court in Harris used the "reasonable person"
standard for assessing hostile environment claims. Previously, in
its Policy Guidance on "Current Issues of Sexual Harassment," the
Commission had adopted a "reasonable person" standard: "[i]n
determining whether harassment is sufficiently severe or pervasive
to create a hostile environment, the harasser's conduct should be
evaluated from the objective standpoint of a 'reasonable person.'"
"Current Issues of Sexual Harassment," at 14.

In defining the hypothetical "reasonable person," the Commission
has emphasized that "[t]he reasonable person standard should
consider the victim's perspective and not stereotyped notions of
acceptable behavior." Id. at 15. In
Harris, the Court did not elaborate on the definition of
"reasonable person." The Court's decision is consistent with the
Commission's view that a reasonable person is one with the
perspective of the victim.4
Thus, investigators should continue to consider whether a
reasonable person in the victim's circumstances would have found
the alleged behavior to be hostile or abusive.

Example -- CP works in a thirty person advertising
firm as a copywriter. CP is one of three female employees at the
firm. After she had worked at the firm for about eight months, she
was promoted to senior copywriter.

Following her promotion, two of her supervisors stopped by her
office to inform her of her new responsibilities. During this
visit, the supervisors insinuated that CP was promoted because the
firm needed to show potential clients "some good bodies" and "some
nice legs" in higher positions. They also asked CP if she had slept
with the head of personnel in order to obtain her promotion.

Thereafter, these supervisors as well as some of CP's co-workers
continued to taunt CP in front other co-workers and sometimes
before clients, suggesting that CP had been promoted because of her
looks and because she was willing to succumb to the advances of
clients and supervisors. CP complained to management and
subsequently filed a charge with the Commission.

An investigator reviewing this charge should consider the
behavior from the standpoint of the reasonable person in CP's
position. A reasonable person in CP's position might take umbrage
at the comments about "good bodies," "nice legs," or "sleeping
one's way to a promotion" and thus might consider her co- workers'
and supervisors' behavior to be hostile and offensive.

In Harris the Court stated that to violate Title
VII, the challenged conduct must not only be sufficiently severe or
pervasive objectively to offend a reasonable person, but also must
be subjectively perceived as abusive by the charging party.
SeeHarris, slip op. at 4. The Court noted that
"[s]o long as the environment would reasonably be perceived,
and is perceived, as hostile or abusive," Title VII would be
violated. Id. at 5 (emphasis added). There is nothing
novel in the notion that a charging party must subjectively
perceive a hostile environment in order to assert a violation of
Title VII. It is well-settled that a charging party's claim will
fail if the allegedly offensive conduct is found to be "welcome."
5

Under the Commission's current policy, an investigator must
consider whether the alleged harassment was "unwelcome . . . verbal
or physical conduct of a sexual nature . . . ." 29 C.F.R. §
1604.11(a); seeMeritor, 477 U.S. at 2406
(requiring unwelcomeness analysis). Adopting the Eleventh Circuit's
definition of unwelcome conduct, the Commission has stated that
"conduct must be unwelcome 'in the sense that the employee did not
solicit or incite it, and in the sense that the employee regarded
the conduct as undesirable or offensive.'" "Current Issues of
Sexual Harassment," at 7 (quoting Henson v. City of
Dundee, 682 F.2d 897, 903, 29 EPD ¶ 32,993 (11th Cir.
1982)). This policy requires investigators to examine whether the
victim's conduct is consistent with an assertion that the alleged
harassing behavior was both uninvited and offensive to the charging
party. The second prong of the unwelcomeness inquiry, whether the
employee considered the conduct offensive, is, in effect,
synonymous with "subjectively perceiv[ing] the environment to be
abusive." Harris, slip op. at 4.

In order to establish a subjective perception of abuse, the
charging party must testify that s/he found the alleged conduct to
be hostile or abusive at the time it occurred.6 Unless the respondent produces evidence to the
contrary, the subjective prong of the analysis will be
satisfied.

Example -- CP, a woman, has worked for A
Corporation for three years. When she first began working for A
Corporation, she joined in when her co-workers and supervisors
would have sexual discussions. She herself would make sexual
comments and lewd references.

After she had worked for A Corporation for about a year, her
supervisors allowed her co- workers to post sexually explicit
pictures on their office walls and in the hallways. Even though CP
had not been offended by her co- workers' bawdy remarks, she
believed that the posting of pornographic pictures demeaned women.
She complained to her supervisor who refused to ask the employees
to remove the pictures. Shortly thereafter, more pictures were
posted. After again receiving no response to her complaint, CP
filed a charge.

Based on these facts, an investigator should find that the
conduct was unwelcome, i.e., that CP subjectively
considered the pornographic pictures to be abusive. Her willingness
to engage in sexual banter is not material to assessing her
perception of the pictures.

Note that an investigator may consider the prevalence of sexual
banter in analyzing whether a hostile environment was created for
other employees.

Finally, the Harris decision reinforces the
Commission's position that conduct that constitutes harassment on
any of the bases covered by Title VII is equally unlawful as a
discriminatory term, condition or privilege of employment.
SeeHarris, slip op. at 4; see
alsoid. at 2 (Ginsburg, J., concurring)(noting
that harassment based on race, national origin, religion and gender
is equally unlawful). The Commission believes that
Harris also applies to cases involving hostile environment
harassment on the basis of age or disability. Accordingly,
investigators should consider Harris applicable
regardless of the antidiscrimination statute on which the charge is
premised.7

Charge Processing

Investigators should continue to take the following steps when
processing charges involving hostile environment harassment:

Consider the totality of the circumstances -- Examine, among
other things, the nature of the conduct (i.e., whether
it was verbal or physical), the context in which the alleged
incident(s) occurred, the frequency of the conduct, its severity
and pervasiveness, whether it was physically threatening or
humiliating, whether it was unwelcome, and whether it unreasonably
interfered with an employee's work performance.

Consider whether a reasonable person in the same or similar
circumstances would find the challenged conduct sufficiently severe
or pervasive to create an intimidating, hostile or abusive work
environment. See "Current Issues of Sexual Harassment," at
14-15.

Consider whether the charging party perceived the environment
to be hostile or abusive, i.e., whether the conduct
was unwelcome. In making this analysis, the investigator should
consider the charging party's behavior. See "Current Issues
of Sexual Harassment," at 10.

For more detailed guidance, see Policy Guidance on
"Current Issues of Sexual Harassment."

1 Prior to oral argument, the
respondent conceded that psychological injury was not required in
order to support a hostile environment cause of action under Title
VII.

2 In order to show that
"[the alleged conduct] unreasonably interferes with . . . work
performance," the employee need not show diminished performance but
only that the alleged offensive conduct made it more difficult for
him/her to do his/her job. SeeHarris
(Ginsburg, J., concurring), slip op. at 1-2; see
alsoHarris, slip op. at 4 ("even without regard
to these tangible effects [such as detracting from employees' job
performance], the very fact that the discriminatory conduct was so
severe or pervasive that it created an environment abusive to
employees because of their race, gender, religion, or national
origin offends Title VII's broad rule of work place equality").

3 Psychological injury may
also be relevant for purposes of computing damages.

4 For a more detailed
discussion of this issue, see "Current Issues of
Sexual Harassment," at 14. As explained there, although the
reasonable person standard must take account of the victim's
perspective, "Title VII does not serve 'as the vehicle for
vindicating the petty slights suffered by the hypersensitive.'"
Id. (quoting Zabkowicz v. West Bend Co.,
589 F. Supp. 780, 784, 35 EPD ¶ 34,766 (E.D. Wisc. 1984)).

5 Note that even if a
particular charging party has not been subjectively offended by the
conduct in question, if a reasonable person would find the conduct
offensive, the Commission itself may pursue relief for any other
persons identified in the course of the investigation who
subjectively found the environment to be hostile. See
General Telephone Co. of Northwest, Inc. v. EEOC, 446 U.S.
318, 22 EPD ¶ 30,861 (1980).

6 It is the Commission's
position that "[w]hen there is some indication of welcomeness or
when the credibility of the parties is at issue, the charging
party's claim will be considerably strengthened if she [or he] made
a contemporaneous complaint or protest." "Current Issues of Sexual
Harassment," at 7. However, while making a complaint or issuing a
protest may be helpful to charging party's case, "it is not a
necessary element of the claim." Id. at 8.

7 If one is subjected to
taunts on the basis of race, national origin, etc., there is
ordinarily no question that the comments are perceived as abusive
and are therefore unwelcome. Nevertheless, before and after
Harris, if the record shows that the comments are not
unwelcome or perceived as hostile or offensive, the charging party
will not prevail.